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Legal Pluralism and History: A Reply to Critics

Asad Kiyani is an Assistant Professor at Victoria Law School. He is a recipient of the 2017 Antonio Cassese Prize for International Criminal Law Studies for his article Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity.


One of the many pleasures of developing The Ahistoricism of Legal Pluralism in International Criminal Law has been the opportunity to engage with the work of leading scholars in international criminal law, legal pluralism, and comparative law. In an academic environment that increasingly turns on metrics and particular forms of scholarship and productivity, it is incredibly generous of all of the participants in our mini-symposium to share their thoughts. It represents the best of the tradition of academic engagement that they have taken the time to comment (and many have done so on earlier drafts as well). I should also thank James for being such an excellent partner on this project; I have benefited from his advice on my doctoral work, and it was a pleasure to join him as co-author here. It’s fair to say we both learned a terrific amount over the course of this project, and I enjoyed it immensely.

In what follows, I offer three overlapping responses, addressing whether historicism as a concept is relevant to pluralism in ICL today; whether the examples we study overemphasize certain values and under appreciate others; and finally, what direction the study of pluralism in international criminal law might also take us.

The insights graciously offered by Alexander Greenawalt and Paul Berman, who have written extensively and thoughtfully on pluralism in ICL, and pluralism more broadly, overlaps to an extent with Neha Jain’s comments. Put broadly, the three query whether our work impacts pluralist scholarship (Berman wonders whether ahistoricism as an analytic is relevant to the work of contemporary international legal pluralists), and whether there is a more pragmatic justification for pluralism that is important in its own right even if it does not equate to the idea of ‘value pluralism’.

As a starting point, it should be noted that the umbrella-type frameworks of Drumbl, Greenawalt, and van Sliedregt (amongst others) see pluralism as a feature of a legal structure that allows us to add in different laws and norms around the settled ‘core’ of ICL. Where gaps present themselves, we can find our answers in domestic law, either iteratively by reference to specific rules in particular instances, or comprehensively, by developing an international position on the basis of these surveys. But the questions of what is ‘core’ and how it came to be so are as important as the questions about identifying what should be filled in around that core and how. Part of our work then is to explain and critique this development of this ‘core’; that is ahistoricism coming to bear on pluralism.

The main thrust of this commentary is that our critique is overstated not because it misapprehends the work of legal pluralists, but because our focus on critiquing the aspirational ephemerality of ‘pluralism’ overlooks somewhat different rationales for incorporating domestic rules into ICL. In short, those rules offer something other than ‘value pluralism’ that is of importance: rules that have been tested in (and held up in) various legal systems, and thereby demonstrated their durability and relevance for international law. I will deal with this critique further in the next section, but note here that while such functionalism is not inherently flawed, it may also represent a particular vision of pluralism that is shallower and formalist. That vision is susceptible to papering over the underlying histories that may either be constrictive of the development of ICL, or that give lie to the claim of benefit to be derived.

One of the primary ways in which pluralists see benefits deriving from preserving legal diversity is the idea that it allows for multiple possible rules to be tested in multiple possible systems (a point Berman makes in his work on Global Legal Pluralism, and which Greenawalt cites). This is the laboratory idea: that rules can experimented with in the laboratory of global legal systems, and the testing reveals what rules are appropriate either as universal norms or in specific but circumscribed conditions. What the paper contests is  not the idea that experimentation is possible, or that diversity is valuable, but that when put into practice the experimentation rationale often exhibits an indifference to sources and an indifference to the context in which these rules are implanted. Exposing the colonial history of so many domestic criminal systems says something about both the context of the law, but even more fundamentally something about the idea that there is meaningful diversity being tested.

As Jain points out, the literature on legal transplants is already highly sensitive to the context in which facially similar rules are applied and develop over time, in ways that might serve to reflect local needs and perhaps even local values. From our point of view, this sensitivity to context and history is often absent when engaging in such exercises in ICL. There, the determinative factor often seems to be whether the rule is present, without regard to how it is embedded, even though it is the system along with the rule itself that conditions the outcome of the experimentation. For all the talk of laboratory testing, very little attention is paid to the experiment itself: how the law was designed, what it was designed to do, and what effect it has had. Instead, when the ‘experimentation’ rationale is put into practice, the Darwinian persistence of a law is taken as proof of its success and therefore relevance to international tribunals. To the extent that these concepts of a legal core and legal experimentation are central to explanations of pluralism in ICL, then ahistoricism is also relevant.

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While Berman wonders if our historical enquiries are relevant to the present, it is also suggested that perhaps we take our historical analysis too far. For example, what of complementarity, Greenawalt asks? Should DRC’s legal history disqualify it from accessing complementarity at the ICC? There is no absolute answer to be offered he says, and is wary that we might propose such (presumably in part because this would be what Kevin Davis describes as a pedigree-based distinction). His concern is further important to us because of the danger that our historical analysis will be used to justify the accessibility of complementarity procedures (and therefore an affirmation of sovereignty) to only Western states whose domestic systems procedurally and substantively replicate international ones. This marginalization of Third World states and their legal agency would seem to run against what Jain rightly identifies as our concern with ICL’s continuing exclusion of the Global South as a norm-generator.

We are not of the view that we have fully resolved the balancing exercise Greenawalt rightly says needs to be engaged when decisions are being made about whether to permit or utilize domestic laws instead of international ones. However, that balancing exercise needs to be more attendant to the experimentation that elsewhere seems to justify greater pluralism. When that experimentation process — i.e. the practice of the domestic law —  reveals extensive state-sourced violence (say through association de malfeiteurs in DRC), those factors ought to be considered.

Is this too obvious? Are the examples we rely upon extreme because they express concern about the remote possibility that obvious rights violations might somehow be tolerated in ICL under the guise of pluralism (recast here as an extreme relativism)? Greenawalt suggests that the examples we focus on shed little light because they clearly offend universal values. Davis takes a different tack, suggesting in his intriguing commentary that our suspicion of local law that is based on the substantive values they (fail to) uphold ignores extremely important factors. We overemphasize the values these local laws offend he says, rather than appreciate the principles they support, and in particular we overlook core rule of law precepts.

Davis suggests our pessimism leads to an assessment of national laws that is overly onerous, and queries whether any national law would pass muster from our view. He is concerned with our focus on doctrinal pedigree, which leads to national laws being suspect on their origin (often colonial), evolution (often undemocratic), or application (repressive). This, he says, “is a stringent test, probably too stringent.”

This is a problem in particular because in his view we overlook the rule of law values that accrue when the law is predictable and stable. Disrupting local norms on the basis of international standards represents its own form of imperialism we would do well to shy away from. He suggests that in critiquing contemporary international lawmaking, we bypass a more obvious answer – representative democracy – that might assuage our concerns about the legitimacy of local laws and, by extension, pluralist methodology. We share some of the concerns raised by Davis, but for slightly different reasons which leads to important and different conclusions.

First, as important as predictability and stability may be, international tribunals arguably have a special obligation to not validate illiberal laws under the umbrella of pluralism, complementarity or some other diversity-based argument given the centrality of international human rights norms to their functioning. It is worth noting then, in response to the suggestion of several of our helpful interlocutors that ICL would not tolerate such obvious rights violations and that we are building a case against a problem that does not exist, that the intersection of competing visions of fundamental rights remains unresolved in both national and international criminal contexts.

Whether it be association de malfeiteurs, the conditions of detention of international criminals (including the estimated 10,000 who died while awaiting trial in Rwanda), the culpability of child soldiers, the difference in punishment that may attach to those tried in the Hague versus their collaborators tried in national courts, or how the Akayesu definition of sexual violence was later constricted by the ICTY’s use of comparative analyses of national law, it remains the case that international criminal law struggles to respond to the thorny questions that arise in defining human rights norms.

On that point, it is worth raising the question of universality again (and repeating a reply in a slightly different register): that the examples we attend to are clearly infringements of universal values, and thus we are arguing against no one in particular. Left unaddressed here though is that the sense of what is a universal norm to be protected remains deeply contested, as we show through our analysis of the Draft Code of Crimes Against Peace and Security of Mankind, and with the Apartheid Convention and indeed in the important regional variation between human rights regimes.  Contestation remains on fundamental issues, and the history of human rights doctrine in the post-war era resists the triumphalism often associated with human rights. There is an inextricable historical link to power associated with the concept of universality, and pluralist schemas that seek to declare and then build around those universals must reckon with those histories and dynamics as well.

Second, as suggested earlier, local correspondence — whether it be to cultural values or the expectations of a polity — necessarily says nothing about the supposed twin pragmatic benefits of pluralism that concern themselves with whether local law is suitable as part of international law. The first of these is the idea that thorny questions of international criminal law may be resolved through experimentation with a variety of different possible solutions that are offered by diverse local legal regimes; the second is that we can develop universalist international law by surveying national regimes and identifying nodes of commonality the diverse legal cultures have independently struck upon. Our position is that even where these regimes correspond with local values or expectations, the underlying justificatory factor of diversity may be absent simply because the vectors of history and legal imperialism are such that these various national regimes are largely duplicative of one another and their Angle-European origins. Thus both experimentation and justification on the basis of independent agreement lose resonance given the erasure of diversity that predates contemporary pluralist moves.

Davis further suggests that a consequence of our stringent test is that it leads inexorably towards a demand for international drafting from first principles, which is a process that is likely to be deeply unsatisfactory to all. We agree that such a process would be imperfect, and recognize in particular the inherent imbalances in negotiation and drafting that often replicate international power imbalances . However, without abandoning the possibility of an inclusive, equal negotiating process, we note that there are other possible approaches.

One episode that is missing from our published article in the American Journal of Comparative Law, but included in the longer draft available on SSRN (which was shared with all our invited commentators), is the development of more liberal criminal procedure code in Argentina over an extended period of time. That federal code borrowed from multiple legal systems, including a quite important influence from the criminal procedure code of Cordoba province. Conscious efforts to liberalize Argentine procedure involved legislators setting an agenda and legal experts providing advice as to how to reshape the federal code, and the eventual dispersion of this code as a model for other Latin American countries who similarly sought to liberalize their criminal procedure. This fusion of legal principles, and deliberate consideration and adoption, neither demands rewriting the law from scratch (as Davis suggests is a necessary corollary of our approach) nor does it forgo the important principles Davis articulates in his reflection: that there is value in a law that is stable but not ossified, and which adheres to the expectations of those it binds. In this respect, we find common ground with Davis and so many of our other thoughtful and generous interlocutors from which to argue for a more inclusive pluralism.

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Where then does the study of pluralism in ICL take us? For Dubber, studying pluralism is in part a way to reflect on the legitimacy of ICL: “Pluralistic international criminal law thus become international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy.” Similarly, Mireille Delmas-Marty’s typically profound reflections highlight the ambivalence of pluralist approaches as both resistance and reconciliation.

The propriety of the concern arises first with the very real problem that, per Dubber, ICL purports to judge individuals based on the questionable premise that it is only “their capacity for autonomy, or self-government” that is relevant, “rather than their place on some status hierarchy”. It is compounded by a second insight, that ICL is not law per se, but really a system of policing in the sense of coercive and discretionary governance that adjudicates over and punishes the morally inferior (if not evil) wrongdoers who commit international crimes. The turn to pluralism, Dubber suggests, recognizes and is primarily a mode for managing this legitimacy deficit by softening the Western imperialist legacy of ICL by infusing it with local, values.

Of great interest here is that central debates about how to manage pluralism and complementarity and related diversity-focused concepts only sharpen the hegemonic origins of much of international criminal law. It is only when there is a question of incorporating the law of a non-Western state that the issue becomes particularly thorny, given that first there is a clear familiarity between Western domestic and international law, and that most of the attention of international criminal tribunals is directed at non-Western states.

But we do not need pluralism to tell us that the practice of international criminal law seems imbalanced in the legitimacy-threatening sense that Dubber describes; that story can be told through critical reflections that focus on the hypocrisy of international criminal practice. That being said, understanding ICL as a system of coercive discretionary governance may help us recognize the limits of pluralism in ICL, where the idea of ‘legal’ pluralism seemingly presupposes a structure of largely unified and hierarchical formal law of the state or of international tribunals. What this concept of legal pluralism leads to – and I do not claim that Delmas-Marty endorses this outcome – is the exclusion of non-state legal orders from  the realm of possible responses to international crime. She rightly warns that our historical analysis risks suggesting that legal pluralism must be state-centric.

One of the concerns with our paper, and with other approaches to legal pluralism in ICL, is the difficulty with finding spaces for non-state law. Though criminal law is often conceptualized as necessarily state-sourced, the context of transitional justice suggests that some flexibility may be needed: it is not necessarily the case that the law to be applied in respect of international crime be ‘criminal law’ per se. I do not propose to carve out that space at this juncture, but only to note that we are alive to those concerns. When we refer to legal pluralism’s descriptive origins (in contrast to more prescriptive contemporary modes), it is precisely that history of legal pluralism to which we refer: the history of Sally Engle Merry and John Griffiths and the classical sense of legal pluralism as identifying and describing non-state normative orders as ‘legal’.

Rather than carve out that space, let me take what space remains and sketch out what I argue in a work-in-progress is a fundamental limit on the possibility of non-state law becoming part of pluralism in ICL. I have argued elsewhere that the selectivity problem of international criminal tribunals is most acute in respect of the partiality shown within conflicts, where only  certain political actors are prosecuted, and not others, even though multiple parties are responsible for comparably grave crimes. This political-prosecutorial alignment is a function of the gatekeeper role played by local political authorities in respect of international criminal prosecutions: state authorities control access to witnesses and evidence, and can thus force tribunals to make compromises on which cases to pursue.

In so far as the legal norms to be applied are part of the tacit arrangement that permits international tribunal involvement without threatening the current arrangements of domestic political power, non-state law finds itself on the outside looking in. In several of the conflicts that international criminal tribunals seek to exercise jurisdiction, part of what is at stake is the modes by which competing parties are to be governed. Should the state be built in the Western, liberal, enlightenment model that Dubber suggests attends to international criminal law? Or should there be a prioritizing of customary non-state legal orders and traditions?   For state authorities to defer to non-state legal orders as a means of response to international crimes would arguably translate into a recognition that its political opponents have some political legitimacy. If international criminal law is not the end of political conflict, but only its continuation in a slightly more decorous forum, then such concessions in the legal sphere may well amount to concessions in (and inflammations of) the underlying conflict as well.

In this light, accepting pluralism in its classical sense, as recognizing non-state legal orders as valid normative structures that have salience in contemporary states, requires not that scholars be willing to challenge the histories of international law, but that states themselves be willing to challenge their own histories – to move beyond the ahistorical narratives of conflict that they often promote – in order to give effect to the aspirational qualities that animate international criminal law and practice. Ahistoricism remains germane.

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I thank again James for his collaboration on this extensive project over the last several years, and our extremely insightful commentators – Mireille Delmas-Marty, Paul Berman, Neha Jain, Alexander Greenawalt, Markus Dubber and Kevin Davis — whose analyses have provoked much reflection. It has been a privilege to engage with all of their ideas.

– AGK

Pluralism and the Alegitimacy of International Criminal Law


Markus D. Dubber is Professor of Law and Director of the University of Toronto’s interdisciplinary Centre for Ethics. Much of Markus’s scholarship has focused on theoretical, comparative, and historical aspects of criminal law.


Stewart & Kiyani’s sweeping article, The Ahistoricism of Legal Pluralism in International Criminal Law, makes an important contribution to the literature on international criminal law, and many other topics besides. It covers so much ground that I’m in no position to comment on much, or even most, of it, but I’ll spell out a few of the thoughts that arose while reading this stimulating paper.

Historical analysis as critical analysis. Given my own (mis-)adventures in historical analysis of law and historical methodology,[1] it’s no surprise that I wholeheartedly agree with the authors that international criminal law, and in fact all of criminal law (comparative and domestic, regional and parochial) needs more history, to paraphrase Christopher Walken. The authors not only insist that it’s worth looking into the history of legal norms but also aren’t shy about putting that historical inquiry to critical use. It’s not just that historical analysis is worth doing for its own sake (I certainly learned a lot from their article) but this historical analysis then allows them to formulate a critique of a position(s) they describe as “pluralism.” And so we see, for instance, that Japanese criminal law is German criminal law and that, in fact, Japanese criminal law swallowed German criminal law whole for a specific (power-political) reason in a specific historical context, as a kind of exercise in self-colonization or preemptive imperialization. I have no idea whether this story holds water, but it makes sense on its face, and certainly enough sense to suggest the need for further inquiry and, more important for the authors’ purposes, the need to take a breath before treating Japanese criminal law as specifically (and characteristically? genuinely?) Japanese criminal law, whatever that would mean, and whyever that would matter.

Pluralism. Why it would matter, according to the authors, is: pluralism! “Pluralism,” in the authors’ telling, comes in a descriptive and a normative flavor. Their paper takes issue with both versions, though the second—normative—one takes the brunt of their critical question-raising (which, in the end, politely pulls its punches and, as a result, never quite evolves into an all-out critique). The descriptive version is “ahistorical” and, more important, misleading because international criminal law isn’t always as pluralistic as it might appear: if historical analysis shows that, to stick with our example, Japanese criminal law is German criminal law then what looks like pluralism is really just duplicatism: German criminal law by different names. But, leaving that aside, even if we maintain—descriptively—a distinction between Japanese and German criminal law (they are, after all, not identical!), then the supposed fact of pluralism doesn’t translate into the desideratum of pluralism. For it turns out that local doctrinal norms may be poor indicators of local social norms because (ignoring a more basic question regarding the relationship between—artificial?—doctrinal norms and—real?—social norms) they may not be truly local, all the way down; upon closer inquiry of the historical kind, they instead turn out to be foreign, alien, “irritating,” “partial,” “dysfunctional.”

International criminal law. But why does pluralism matter? Why is it a good thing that pluralism is a good thing in international criminal law? I take it the apparent interest in, and professed preference for, legal, social, cultural, etc. pluralism (or “diversity”) has something to do with the existential anxiety of international criminal law. Is it legitimate? Is it imperialistic? Is it racist? Socially, cultural, politically, economically, legally hegemonic? Since self-government (most obviously by personal consent), the familiar mode of legitimation of modern (liberal) law, including—at least in theory—modern criminal law, isn’t available in the self-made sui generis, stateless, asovereign, and nonhierarchical realm of international criminal law, its oppressive potential, I suppose, is thought to be mitigated (rather than acknowledged and justified) by showing respect for a vague notion of “pluralism.” “Pluralism” here might mean nothing more than not universalism or not Western/Northern imperialism (leaving conveniently unclear what it is, rather than what it is not). Pluralistic international criminal law thus becomes international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy.

This anxiety about legitimacy turns out to be both appropriate and inapposite, at the same time. Appropriate because there is a very real problem with a system of international criminal law that threatens and inflicts penal violence on persons, insofar as that system holds itself out a system of law in a very particular, liberal, Western, enlightenment sense, namely in the sense of a then-radically new mode of governance grounded in the conception of the subjects and objects of penal power as persons marked by, and only by, their capacity for autonomy, or self-government (rather than their place on some status hierarchy or other, e.g., patriarchalism). This enormous, and prima facie unmeetable, legitimacy challenge is not unique to international criminal law; it applies to any (but only any) political-legal regime that regards itself as committed to this conception of law, domestic, regional, international, global.

Inapposite insofar as international criminal law is, in fact, a misnomer.[2] Instead of conceptualizing international criminal law as a system of law, it may be useful to regard it as a regime of police, where police is understood as that long-pedigreed patriarchal mode of governance on which the modern conception of law cut its teeth during the long turn of the eighteenth century. In this (historicizing…) light, international criminal law appears as an alegitimate regime of discretionary governance in which technically and supposedly asovereign subjects exercise penal power over categorically distinct—and inferior—objects (pirates, ex lex, outlaw, vogelfrei, hostis humani generis, all vanquished, none victorious, evil creatures beyond the pale, for whom punishment under international criminal law is a merciful alternative to a far worse fate, etc.).

Incapable of facing its legitimacy challenge head-on, international criminal law instead makes do with professions of concern about “pluralism.” Sensitivity to pluralism, in this light, appears as part of a general attempt to obfuscate and thereby to manage, rather than to address, the fundamental legitimacy crisis of international criminal law as law…ironically, by highlighting the superior character and benign intentions, if not the benevolence, of its subject-protagonists, however unconstrained by, say, formal “principles of legality” their penal actions may be.

[1] E.g., Markus D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (2005); Markus D. Dubber, “Legal History as Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law,” in Oxford Handbook of Legal History (Markus D. Dubber & Christopher Tomlins eds., forthcoming 2018) [SSRN].

[2] See Markus D. Dubber, “Common Civility: The Culture of Alegality in International Criminal Law,” 24 Leiden Journal of International Law 923 (2011) [SSRN]; see generally Markus D. Dubber, The Dual Penal State (forthcoming 2018).

The Inherent Pluralism of International Criminal Law


Alexander K. A. Greenawalt is a Professor of Law at the Elisabeth Haub School of Law at Pace University. His research focuses on criminal law, international law, and the laws of war.


I am grateful to James Stewart for inviting me to participate in this symposium on the provocative, deeply researched, and illuminating article that he and Asad Kiyani have authored. I have enjoyed engaging Stewart’s work over the years—including in a recent article on complicity which greatly benefitted from his writings—and I look forward to reading more of Kiyani’s work.

Let me start by identifying some points of agreement. I share the authors’ conviction that it is worth looking for right answers in criminal law, and I agree that those answers can transcend sometimes superficial doctrinal differences among legal systems (indeed, my above-linked article on complicity advances precisely such a claim). I also agree that it is misguided to romanticize difference for the sake of difference and that one must avoid the casual assumption that national criminal laws always have claim to deep cultural authenticity within the societies they regulate.

As Stewart and Kiyani note, I have used the word “pluralism” to defend a particular approach to international criminal law (“ICL”). Stewart and Kiyani are skeptical about pluralist approaches to ICL, but I struggled when reading their article to understand how exactly their position might impact my own, or indeed the actual practice of ICL. In part, this is because I find their account of pluralism somewhat elusive. Sometimes the authors seem to suggest that pluralism means blind deference to every doctrine of domestic criminal law no matter how oppressive. Elsewhere (among other approaches), they associate pluralism with a method by which ICL might arrive at consensus international standards—namely, by embracing rules derived from national criminal law that reflect a “real degree of inclusive, plural, cosmopolitan values” and are “doctrinally plural within a diverse, conflicting, sometimes inter-penetrating system of criminal law.” I am not aware of any scholar who has advanced the first position and the second claim is not one that I would associate with pluralism in the sense that I have used the term, although it does resemble a standard methodology embraced by international criminal tribunals attempting (sometimes misleadingly as the authors observe) to marshal support for universalist claims about the content of ICL.

I am curious, as well, about how exactly Stewart and Kiyani’s broad rejection of pluralism informs the actual practice of international criminal justice institutions. Take, for instance, the International Criminal Court’s (“ICC”) complementarity requirement which sometimes requires the Court to defer its jurisdiction in favor of criminal justice at the national level. Suppose the ICC is pursuing a suspect in the Democratic Republic Congo (“DRC”) who is being investigated at the national level for the same conduct. Do the authors believe that complementarity can or should apply in a case like that, or should the systemic, historically rooted deficiencies they identify in the DRC’s criminal law categorically preclude deference in all cases? Or perhaps complementarity itself should be abandoned because it inherently introduces the problems of pluralism that the authors explore? How then should a global system of ICL proceed if it rejects domestic prosecutions of international crimes?

The most obvious solution I can glean from Stewart and Kiyani’s article is that the world must coalesce around a single, best, cross-cultural and universal approach to all questions of criminal law and procedure, one that is devoid of power politics or cultural bias. If the world can achieve that, then I agree that the normative defense of pluralism becomes quite unconvincing indeed. But if that is the claim, then the authors must establish far more—and overcome far greater hurdles—than they do in this article.

For example, even if the world were to coalesce around the unitary theory of perpetration that the authors advocate (rejecting formally differentiated modes of criminally participation) I don’t see how the general choice of a unitary versus differentiated model is especially important in comparison to the host of other choices affecting guilt, innocence, and degrees of culpability that must be decided upon under either model.

Perhaps, however, one should read Stewart and Kiyani to advance a more modest claim that universalism is something to work for, that some universal answers are accessible, and that the blind embrace of pluralism is both threatening to this project and harmful given the colonial origins and distortions evident in many criminal law systems. If that is the claim, then I agree with the central thrust of the argument, but my own defense of pluralism does not proceed from the assumption that national criminal law demands blind deference or that it necessarily has some claim to deep cultural authenticity. To me, the central question is not one of universalism versus pluralism, but of how to manage the pluralism that unavoidably has accompanied the establishment of ICL. I also believe that my own framework accommodates many of the concerns that the authors raise, and so I will attempt in the remainder of this post to sketch out some of my own thoughts on this issue and attempt to see how they may accommodate at least of some of the concerns raised by Stewart and Kiyani.

I begin with the fact that there is variety in the criminal law. I agree (even outside the colonial context) that variety need not have any deep cultural basis. While differences among states may sometimes reflect important cultural fault lines, they are just as likely to reflect arbitrary, and sometimes pernicious, historical vestiges or the influence of judicial interpretation.

International law, in its current state, is hardly agnostic about this diversity. The body of international law that most broadly regulates these choices is international human rights law (“IHRL”). Many of the examples that Stewart and Kiyani invoke—judicial bias after World War I, restrictions on freedom of association, anti-blasphemy laws—reflect straightforward human rights violations. As a matter of IHRL (as the authors themselves acknowledge), these examples already offend universal values.

ICL, by contrast, presents only a limited intervention by international law into matters of criminal law. ICL evolved, in my view, not to harmonize national approaches to criminal law, or even to define and regulate uniquely “international” offenses in some qualitative sense, but instead to enable institutional interventions that counteract unique obstacles to the prosecution of certain especially grave offenses. The point of prosecuting Holocaust crimes at the International Military Tribunal at Nuremberg, for example, was not to reject German criminal law’s general judgments about how to define and assign liability for murder in ordinary cases. The point was to counteract and ensure accountability for the specific ways in which Nazi Germany had made an exception to those judgments by converting the state into a system of domestically authorized mass extermination. I believe that ICL speaks the most strongly when it works to justify and define the scope of such interventions, and it speaks more tentatively (although not entirely without authority) when it addresses more general questions about what it means to be a criminal.

How does this way of looking at things interact with Stewart and Kiyani’s specific claims? In previous work I have explored the example of the Erdemović case at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) involving a soldier who was forced under threat of death to participate in a firing line that massacred Bosnian Muslim civilians.   The ICTY Appeals Chamber rejected the defense on (I believe unpersuasive) policy grounds, notwithstanding the unresolved nature of the question under international law and the fact that many states, including all the republics of the former Yugoslavia, take a more permissive approach to duress.

I do not know whether Stewart and Kiyani have access to an optimal, universalist approach to duress. My position is that the ICTY should have looked to Bosnian law under the circumstances. In advancing this argument, I do not assume that the Bosnian criminal code reflects a deeply embedded and culturally specific approach to duress. Rather the Bosnian law reflects a fairly standard civil law approach that the state inherited from its prior membership in communist Yugoslavia. I think that the law of duress presents unavoidably hard questions, that all the dominant legal approaches to the issue are problematic in some respects, and that the Bosnian law falls within a range of reasonable disagreement that neither offends core human rights value nor the specific purposes of ICL. In a case like that, I don’t think that ICL has a strong interest in overriding the local law to deprive the accused of a defense which his society affords to other similarly situated persons. But even if one disagrees with that specific conclusion, the same problem arises in other guises. Suppose that the Bosnia’s own courts were prosecuting Erdemović for international crimes. Must those courts also prefer the ICTY’s approach to duress over their own? And what about ordinary domestic prosecutions for non-international crimes? Wherever one draws the line, the basic problem remains: absent universal, global agreement on how to handle duress, some defendants must be treated differently from others based on perhaps arbitrary, non-culpability driven reasons. Similar issues arise with respect to other standards of responsibility, principles of sentencing and so forth. Must ICL take an absolute position on every one of these questions, no matter how tangential the doctrinal issue is to ICL’s core mission?

At the same time, I agree (and have argued) that is desirable to have a single, comprehensive set of ICL rules that are available for use by a global court like the ICC and in other contexts where reliance on domestic legal principles proves problematic or undesirable. There are many reasons to favor this restult, including problems that Stewart and Kiyani explore as well as concerns having to do with clarity and administrability. But I do not think that those reasons exhaust all the procedural contexts in which ICL finds itself enforced. In the end, implementation of ICL involves a number of situation-specific considerations that cannot be resolved by broad appeals to either universalism or pluralism. Instead, there are a balance of factors to consider. Stewart and Kiyani convincingly elucidate some important factors that may sometimes arise. But they do not, in my view, eliminate the need for such balancing.

 

 

 

What Does it Mean for International Criminal Law to Conform to Local Values?


Kevin E. Davis is the Beller Family Professor of Business Law at New York University School of Law. His current research is focused on contract law, anticorruption law, and the general relationship between law and economic development.


Does international criminal law conform to local values? How can we tell? Why should we care? In their fascinating and illuminating article, The Ahistoricism of Legal Pluralism in International Criminal Law, James Stewart and Asad Kiyani focus on the first of these three questions. Inevitably though they end up addressing the other two questions as well. I say “inevitably” because it would be impossible for them to answer the first question about conformity without answering the methodological question of how to identify it, at least implicitly. And to choose among the variety of ways of assessing conformity they have to determine the purpose of the assessment, again, if only implicitly.

Stewart and Kiyani’s main interest is in debunking the view that doctrines drawn from national criminal laws necessarily conform to local values. The promised payoff is insight into the important issue of whether international criminal law ought to be pluralistic or universal — or as I prefer to put it, should it be uniform or not? They seem to believe that their debunking exercise undermines the case for non-uniform approaches. However, this only follows if a) they have an accurate test for conformity with local values and b), the case for a non-uniform international criminal regime depends in a significant way on the results of that test.

The way that Stewart and Kiyani test for conformity suggests they believe that the main justification for non-uniform approach to international criminal law is political legitimacy. I believe they are mistaken about what political legitimacy demands in this context. I also believe they neglect at least two other plausible justifications for a non-uniform regime: respect for individuals’ rights to be governed by familiar doctrines and effectiveness. For all these reasons I think that Stewart and Kiyani’s historical analysis does less damage to the case for non-uniform international criminal law than they make out. Let me explain.

Political legitimacy

The Ahistoricism of Legal Pluralism in International Criminal Law is organized around a series of case studies that examine whether various criminal law doctrines do or do not conform to local values. In each of the negative cases the reasons for concluding that there is a lack of conformity are slightly different. In the Democratic Republic of Congo the problem is that the colonial doctrine has remained in force without being amended by any local actors. In Pakistan the concern is that local amendments to a colonial doctrine were made by repressive dictators. Etc.

Curiously, nowhere do they test for conformity by referring to direct observations of local values. Stewart and Kiyani could have tried to ascertain the amount of popular support for individual doctrines by examining, say, survey data or commentary in the popular press. It is unclear why they eschew this seemingly obvious approach.

Instead, Stewart and Kiyani focus on assessing the pedigree of the doctrines. When a doctrine is damned it is because: it was originally drafted by a colonial power; if it was revised by local actors they were working at the behest of an un-democratic government or for some other reason failed ensure popular participation in the lawmaking process; or, it has been used, either locally or elsewhere, either as a tool of repression or in a partial fashion.

This is a stringent test, probably too stringent. Given the prevalence of legal transplantation and legislation by non-participatory, un-democratic or repressive regimes, most national criminal law doctrines seem likely to fail. More importantly for their ultimate argument, I believe that even the universalistic doctrines Stewart and Kiyani seem to favor would shrivel under this kind of scrutiny. What international drafting process is likely to ensure participation from all affected people, without intermediation by undemocratic or even repressive governments?

Focusing on whether the formulation of a doctrine involved democratically elected leaders and public participation seems to be a way of determining whether the doctrine in question is politically legitimate. If that is the goal then I think Stewart and Kiyani go astray because they underestimate both the costs of participation and the appeal of an alternative method of taking into account the views of the relevant public, namely, representative government. Drafting legislation from scratch and in full view of the public is a time-consuming exercise whose results may well leave everyone unsatisfied. Participation by all affected individuals is unrealistic, unnecessary and inefficient. Representative government, meaning participation by officials who are accountable to the people, may be sufficient to ensure that the public’s views are respected, and is far less costly.

Civil rights

Another element of Stewart and Kiyani’s test for whether a doctrine conforms to local values is whether it has been used to facilitate repression. That is what I take from their suggestion that the doctrine of association de malfaiteurs fails to conform to local values in France—where it originated—because it has been used repressively against people suspected of terrorism.

By suggesting that even contemporary French criminal law might be a problematic source for international criminal law, Stewart and Kiyani shift the debate away from political legitimacy to a new terrain, individual civil rights. They clearly believe that a test which excludes doctrines that violate civil rights will tend to be biased in favor of universalistic doctrines.

Stewart and Kiyani neglect a countervailing factor though: a non-uniform approach may result in adoption of doctrines that conform to local expectations, assuming that exposure tends to breed familiarity. When it comes to legal doctrine, familiarity is intrinsically desirable, even if, as Stewart and Kiyani might point out, it can also breed contempt. Doctrines that conform to people’s expectations are desirable, all else being equal, because they contribute to legal certainty and avoid situations that are tantamount to ex post facto lawmaking.

Effectiveness

Finally, Stewart and Kiyani neglect another type of justification that might weigh in favor of a non-uniform approach to international criminal law: effectiveness. Suppose the effectiveness of criminal law doctrines varies depending on the circumstances. For example, harsh punishment for inchoate offenses might be reasonable in a society where evidence of completed offences is difficult to obtain, but less reasonable where evidence is more accessible. Similarly, a law against blasphemy might be reasonable in a society riven by religious tensions, but unacceptable in a society where religious toleration is better entrenched. In other words, different doctrines might be optimal in different circumstances. A non-uniform approach to international criminal law can accommodate this kind of diversity. Note that if effectiveness is the primary concern the critical issue will not be whether a given doctrine conforms to local values, but rather whether it fits local conditions, which is a slightly different test.

I develop this argument in favor of non-uniform “contextualist” approaches to lawmaking at greater length elsewhere, including in my writing about transnational – and international – anti-corruption law.[1]

Conclusion

For all these reasons, tracing the tainted history of national criminal law doctrines is an interesting and valuable exercise but does not provide compelling reasons to reject non-uniform approaches to international criminal law.

[1] See Legal Universalism: Persistent Objections, 60 University of Toronto Law Journal 537 (2010) and Between Impunity and Imperialism: Rethinking Transnational Anti-Corruption Law (forthcoming).

Legal Pluralism as a Dynamic Process in a Moving World

Mireille Delmas-Marty is the Professor of Comparative Legal Studies and Internationalisation of Law at the Collége de France. She is the author of Ordering Pluralism, A Conceptual Framework for Understanding the Transnational Legal World (Hart, 2009) and Towards a Truly Common Law – Europe As a Laboratory for Legal Pluralism (CUP, 2002).


I fully agree with the starting point: « International criminal law is legally plural, not a single unified body of norms ». ICL is an excellent example to illustrate what is called “Legal Pluralism” (LP), especially when considering « the complex dance between international law and domestic criminal law ». I also agree with the authors’ insight that this dance “takes place on at least five levels: (1) within national courts, trials involving international crimes often employ their own local criminal law standards rather than the international law equivalent; (2) international courts sometimes follow a particular national system in interpreting ICL rules; (3) international courts often survey then synthesize a wide selection of national rules to demonstrate widespread support for their favored approach; (4) at times, international statutes, treaties and national legislation define the same ICL concept differently and finally (5) judicial bodies that interpret ICL occasionally disagree amongst themselves about the interpretation of the same body of law”.

Before concluding that the dance is “improvised  rather than choreographed”, I propose considering diverse observable dynamics as a “work in progress for a world in process,”[1] leaving the question of “what might count as law” open.  It seems to me that by choosing an exclusively state-centric perspective while the world is moving, the authors risk confining themselves to a state-centric, modern representation of LP which identifies the rule of law with state law and makes the concept necessarily oxymoronic.  To be “legal”, pluralism must be integrated into a state order which presupposes a structure that is more or less unified and hierarchical (unified because it is hierarchical) whereas pluralism implies (as traditional international law) the plurality of systems of law and their independence; it separates or juxtaposes different systems but does not organize them.

Beginning in the post-war period, globalization has opened a “post-modern” perspective which does not necessarily imply the disappearance of states, stimulating a somewhat paradoxical sovereign withdrawal, but increasing state interdependence. It leads to an unprecedented development of international law at supra and trans-state levels and even more surprisingly at the infra-state level. It has resulted in a whole that is plural, complex and evolving; a true challenge to the notion of the rule of law.  To address such a challenge, the goal of bringing order to pluralism involves a choreography which combines three interacting processes attempting to reconcile universalism and pluralism.

Three interacting processes

One evokes, in increasing order of integration: horizontal coordination, for example, across “circular models” of one legislator to another, or judicial dialogue; harmonization, which brings differences together rather than abolishing them; and lastly unification as a fusion when differences are incompatible.

The process of coordination facilitates spontaneous and horizontal reconciliation of differing systems.  It is without a doubt the most widely practiced process, from unilateral borrowing to cross-exchange, with examples of “cross fertilization”; but it is also the most uncertain since it relies on the good will of state actors.

The process of harmonization is more restrictive because of its reliance on a hierarchy between the national and international levels, which is itself complex because the hierarchy is flexible depending on its origins at the national or international level.

From the national level to the international level, an upward dynamic of reconciling differences demonstrates the importance of history and memory in illuminating comparative law.  We can only understand it when using critiques of “ahistoricism of legal pluralism” from preceding authors as a starting point.  Neglecting the historical dimension may have the effect of “condoning illegitimate or dysfunctional law”.  But it is also necessary to take into account the ambivalence of comparative law, in the sense that it can be invoked equally to resist as to reconcile differences.  As such, the example provided by the authors of Argentinian criminal procedure as being the “exception which confirms the rule” can also be understood as a reflection of this ambivalence.

It is also crucial to consider the downward dynamic that is at work from the international level to the national level. As discussed, international law is no longer simply inter-state and takes a supra-state status in its universal calling, but pluralism may reappear across diverse international law techniques allowing for “contextualising” the universal.  From this point of view, international criminal law is particularly interesting. Even to demonstrate the notion of a unified principle such as crime “against humanity”, the requirement of “complementarity” can be reintroduced at the national level.  We know that the International Criminal Court can only function competently in contexts where states in question lack the willingness or capacity to judge themselves. To exercise their competence, they must transpose international criminal law to domestic law and this transposition does not exclude a certain margin of national interpretation.

In noting that in both cases, whether ascendant or descendant, harmonization calls for “fuzzy logic”, cleaning up national margins precisely by replacing a requirement of conformity with one of compatibility.  This softening is not always possible.

Whereas the third process, that of unification, solidifies the hierarchy of norms by imposing a single norm, but risks abolishing any hope of pluralism.  Barring the renunciation of the unilateral process of transplantation – the pernicious effects of which have been demonstrated in colonialism –, the benefit of introducing a process of hybridization, which is multilateral and reciprocal.  In fact, it is rare to see such a practice across all scales on the planet.  Even at the level of the ICC, decisions that surround defining attempt, complicity and criminal procedure are informed directly by Western culture.  As such, hybridization is often limited in procedure to combining accusatory and inquisitory models.  On the other hand, crimes against humanity are broadened by notions such as apartheid, and criminal procedure can be enriched with alternative such as truth and reconciliation commissions.  Even more broadly, international law can contribute to the duty of remembrance by creating a duty to anticipate the intentions of future generations (for example, by creating, across cultures, a crime of ecocide).

Reconciling universalism and pluralism 

In a time when globalization reinforces interdependence from one end of the earth to the other, we must discuss the UNESCO Declaration of Cultural Diversity (Nov. 2001).  This declaration (extended through a 2005 convention) made clear the tension between two apparently contradictory principles of international law: on one hand, the universality of values proclaimed by the “Universal” Declaration of the Rights of Man of 1948; and on the other, the principle of diversity of culture and religions, thus of pluralism, making up a “common heritage of humanity” per the UNESCO declaration.  It is not an accident that this principle was posed in the days following September 11th 2001, which is sometimes characterized as a collision of cultures.

Some have interpreted the principle of diversity of “setting the fox among the chickens”.  But neither the human rights, nor international sanctions against the most serious crimes are comparable to a chicken coup; rather to a winding and unpaved road at risk of becoming an impasse if it leads to a complete relativism where all values ​​are equal. The 2005 Convention does not assert that all values are equal.  It poses the principle of “equal dignity and respect of all cultures” but attempts to push back at the risk of relativism by affirming as a first principle the respect of the rights of man “as set out by the universal declaration or guaranteed by international law”.

While this objective is set out, neither the Universal Declaration of Human Rights nor the UNESCO convention provide a method for reconcile pluralism and universalism.  Our hypothesis is that by rationalizing processes of coordination, harmonization and reciprocal hybridization, it is possible to put a coherent and diversified dynamic in place.  In a moving world, this dynamic must serve not only to construct a “truly common law of humanity”[2] based on the model of the rule of law, but also to avoid the pluralism which divides and universalism which leads to uniformity. We aim to create a path which can be called “ordering pluralism” or “contextualized universalism”, somewhere between the relative and the universal.

 

 

[1] See M. Delmas-Marty, « The ICC: a Work in Progress for a World in Process », in M. M. de Guzman and D. M. Amann, Arcs of Global Justice: Essays in Honour of William A. Schabas, Oxford University Press, 2018.

[2] M. Delmas-Marty, Towards a Truly Common Law – Europe As a Laboratory for Legal Pluralism, CUP, 2002. See also her current research project “Vers un jus commune universalisable?”: https://www.pantheonsorbonne.fr/unites-de-recherche/isjps/presentation/equipes-de-lisjps/equipe-de-droit-compare-et-internationalisation-du-droit/vers-un-jus-commune-universalisable/

Understanding Global Legal Pluralism and International Criminal Law

Paul Schiff Berman is the Walter S. Cox Professor of Law at the George Washington University Law School. He is the author of Global Legal Pluralism (CUP, 2012)


James G. Stewart & Asad Kiyani argue that the core human rights norms embodied in international criminal law (ICL) should not be lightly pushed aside in the name of cultural diversity or purported deference to the criminal law norms of the local communities where crimes might have occurred. First, they suggest, whatever these local norms might be, they might not actually be embodied in the communities’ formal criminal law doctrine because that official doctrine may instead reflect historical contingency or may be the product of hierarchy. Second, they contend, even if domestic criminal law doctrine does sometimes accurately reflect local norms, we might nevertheless choose to ignore those local norms and insist on the primacy of ICL norms in order to make sure that those who commit heinous crimes are sufficiently punished.

I do not disagree with either of these points, but I confess that I am a bit mystified that the authors think that by embracing these arguments they are somehow challenging theories of Global Legal Pluralism or revealing the “ahistoricism” of such theories. I readily admit that I am not an ICL expert, so perhaps there are scholars who invoke legal pluralism to reject the imposition of international norms in all circumstances or who celebrate the “local” even when what is truly local is itself contested and is perhaps the product of hierarchy. I am not aware of such scholars, but if they exist then Stewart & Kiyani are right to offer their critique.[1]

But given that the authors name me in their introduction as one of the scholars of Global Legal Pluralism to whom they are responding, I think it is necessary to point out that nothing in my approach contradicts the arguments Stewart & Kiyani make. In this brief response, I will try to explain.

To begin, it is important to recognize that the focus in my book Global Legal Pluralism: A Jurisprudence of Law Beyond Borders was not on the substantive norms embodied in legal doctrine at all and certainly not substantive criminal law norms. Instead, I argued for procedural mechanisms, institutional designs and discursive practices that might take into account the multiple communities that might have a stake in a given decision and therefore better manage the inevitability of legal pluralism. Accordingly, to the extent I discussed ICL at all, I focused on the design of criminal law institutions and procedures, not the content of criminal law doctrine or norms. For example, I discussed the possibility that hybrid tribunals comprising both domestic and international actors might sometimes be preferable to either a fully international tribunal, on the one hand, or a fully domestic one, on the other. But I never addressed the content of the norms that might be applied by such tribunals. And I certainly never argued that the ICL norms regarding, for example, genocide, war crimes, or crimes against humanity should be jettisoned in favor of “local” criminal law.

This distinction between substantive doctrine and procedure seems crucial in considering the points Stewart & Kiyani make. For example, the authors rightly note that we might not want to defer to the substantive law of communities that themselves received their substantive law through colonial imposition. That seems perfectly correct. But even so, we might still choose a hybrid court—with both local and international judges and local and international prosecutors—in order to maximize local participation while still protecting against the possibility of local capture. Or we might choose a trial process that incorporates certain local forms of testimony or practice within it, regardless of the derivation of those practices.

More broadly, my version of Global Legal Pluralism is emphatically not a celebration of the local in all circumstances and under all conditions. Instead, I staked out a position that was both cosmopolitan and pluralist and argued for procedures that would strike a middle ground between universalism on the one hand and localism on the other. As such, far from rejecting all international norms, I provided numerous examples of so-called “local” actors using international norms to gain leverage within their own domestic legal or political systems that they would not otherwise have had. Further, I made clear that even if pluralism is a potential value to be considered in designing institutions, procedures, and practices, it is certainly not the only potentially relevant value. Thus, I wrote that whatever value there might be in trying to defer to a norm of a community, that value must be weighed against competing values, for example the values embodied in universal human rights. Accordingly, I made clear that a procedural mechanism that gave voice to pluralism might still be rejected on other grounds. My point was only that the value of pluralism should always be factored into the institutional design decision, not that it should always win.

So how might my approach translate into ICL during a period of transitional justice after mass atrocities? First, as mentioned above, I believe it is useful to consider multiple kinds of procedures and institutions and think about which sorts of procedures and institutions might best generate buy-in from among the many communities that might have a stake in the new society being formed. Second, I believe it is also at least worth thinking about how one might incorporate local norms and procedures into any given transitional justice mechanism to the extent possible, while still remaining faithful to the other core substantive values embodied in ICL.

But under no circumstances would my vision of Global Legal Pluralism so reify the “local” that it would require international norms to give way to local norms just because those norms were local. After all, Global Legal Pluralism not only recognizes that the content of norms is always contested by multiple communities; it also recognizes that the international community is one of those communities participating in the contestation. Moreover, pluralists of all people recognize that there is no single “local” norm anyway and that multiple local actors have a wide variety of interests and are therefore always contesting the content of local norms. In addition, as Stewart & Kiyani rightly point out, the “local” can be as much the product of hierarchy (or colonialism) as the international. So there is nothing inherently good about the local or evil about the international. Nor should we assume that the value of giving voice to plural voices always trumps every other possible value. After all, a lynch mob may be an expression of local norms, but it need not be celebrated or deferred to for that reason.

So, in the end, from my perspective Stewart & Kiyani end up arguing against a caricatured portrait of Global Legal Pluralism that I for one have never embraced and certainly have no wish to defend. To the contrary, if the focus shifts from doctrine to procedure, then I think my vision of Global Legal Pluralism actually comes out pretty close to where Stewart & Kiyani do: emphasizing diversities of values rather than doctrines in designing international criminal law mechanisms. But a pluralist approach would be sure also to include the value of broad-based participation by multiple communities and to think carefully about how best to foster such participation in all its forms.

If Stewart & Kiyani want to argue that local participation and buy-in is completely irrelevant to ICL, then I think we can have a legitimate debate. But I don’t see them to be arguing that point. If instead they simply want to make sure we don’t treat the codified criminal law of a community as an automatic proxy for the actual norms of that community, one would think they should get no argument from pluralists, who after all have always started from the premise that formal codified law is not the only relevant determinant of community norms. Alternatively, if Stewart & Kiyani want to argue that we shouldn’t always reject international norms in favor of local ones, again it seems hard to imagine they will get much argument from those who espouse Global Legal Pluralism. Global Legal Pluralism recognizes that what is local and what is global tend to be mutually constitutive anyway, as norms seep back and forth from local to global and vice-versa, multiple actors import and export norms for strategic purposes, and international law becomes “vernacularized” and transformed in local settings.

In short, Stewart & Kiyani have done wonderful research and have provided important insights regarding ICL. But it is not at all clear that their work has much to say about Global Legal Pluralism, at least not the Global Legal Pluralism with which I am familiar and to which I subscribe. Thus, it seems to me that the article would be better framed simply as a contribution to a discussion about the normative content of ICL, rather than as a response to Global Legal Pluralism. Re-framed in that way, I suspect that it is an important contribution to the theory of ICL and can be celebrated on its own terms. And as a pluralist, I would be happy to join in that celebration.

[1] I note that my reading of the scholars cited by Stewart & Kiyani in their introduction do not suggest that those scholars make the sort of broad ahistorical claims Stewart & Kiyani are criticizing either. For example, Alexander Greenawalt does not argue that ICL must always give way to local domestic law norms, only that such deference may sometimes be appropriate. Likewise, Elies van Sliedregt actually argues for maintaining a universalist core to ICL even while trying to accommodate some pluralism in application. Thus, it is difficult to see which pluralists Stewart & Kiyani are criticizing.

A Comparatist View on Doctrinal Diversity in International Criminal Law

Professor Neha Jain is an Associate Professor of Law and a McKnight Land-Grant Professor (2016-18) at the University of Minnesota Law School. Her scholarship focuses on public international law, criminal law, and comparative law.


In their provocative article on The Ahistoricism of Legal Pluralism in International Criminal Law, James Stewart and Asad Kiyani challenge the increasingly popular view that legal pluralism, as reflected in doctrinal diversity, is a value that ICL should strive towards. For Stewart and Kiyani, in embracing doctrinal heterogeneity as a marker of cultural cosmopolitanism, ICL scholars, practitioners, and courts, have been barking up the wrong tree and have ignored the socio-historical context of criminal law doctrines in both domestic and international law. Instead, universal norms that represent a multitude of cultural values and political interests might be better vehicles for ICL to become a genuinely value plural enterprise.

Stewart and Kiyani assemble an arsenal of theoretical arguments and case studies to demonstrate their thesis. One of the main strengths of the article is the astonishing variety and depth of national and international doctrines relied on to illustrate the perils of using doctrinal diversity as a proxy for cultural pluralism. Moreover, in a refreshing departure from the bulk of ICL and comparative criminal law scholarship, several of their national examples, such as blasphemy laws in Pakistan, are from typically unrepresented regions of the world and are analysed with rigour and sophistication.

A work of such sweeping knowledge and bold assertions nonetheless comes with its own set of challenges, some of which I can only address in broad strokes in this short commentary. First, Stewart and Kiyani’s main focus, as they acknowledge, is on state law. More specifically, the primary target of their criticism is doctrinal state law and the borrowing of this law by international criminal law actors without regard to its history and context. This analysis could have benefited from more engagement with comparatist scholarship. A vast and, by now, fairly standard, body of comparatist scholarship is dedicated to the need to move beyond doctrine. Indeed, much of the literature of legal traditions, legal formants, and variants thereof, has repeatedly emphasized the limitations of doctrine in ways that are entirely compatible with  Stewart and Kiyani’s thesis. This leads to a question – given that almost no serious comparatist today would adopt such a narrow approach to legal systems, who exactly is championing such a blinkered vision of “diversity” in ICL?  ICL scholars, as Stewart and Kiyani point out, are usually “more considered in their pluralism”.

Are the true culprits then international tribunals? The authors discuss, for example, the adoption of conspiracy as an inchoate mode of liability at the Nuremberg and Tokyo trials. However, the only reference to municipal legal surveys comes in the form of the document prepared by the American Chief Prosecutor at Tokyo to refute the argument that the conspiracy doctrine was unique to Anglo-American law. The authors do not dispute that the Prosecutor was correct in his geneaology of the national laws he cited on conspiracy – their objection is to his omission of their violent history in some jurisdictions. This is an entirely sympathetic position, but it does not serve to further the thesis of the paper. Whether introduced through consent, indifference, or violence, a rule or doctrine that forms part of the criminal law of a legal system can hardly be said to be completely unknown to it. Neither do Stewart and Kiyani claim that the Tokyo tribunal ultimately went on to rely on this survey to make the further leap that conspiracy therefore embodied value pluralism. Instead, they rightly criticize the way in which the court applied the doctrine to the facts of the case, which had little to do with whether or not conspiracy was a culturally cosmopolitan legal construct.

Moreover, even if international courts are conducting national surveys of criminal law doctrine in order to formulate ICL principles, are they truly doing so in the name of cultural pluralism, or simply because national doctrine is an easily accessible source of legal concepts and ideas that can be plugged into an international criminal law regime ridden with gaps and contradictions? In Stewart and Kiyani’s analysis of the ICTY’s jurisprudence on Joint Criminal Enterprise, there are a few references to the reasoning adopted by the Appeals Chamber in the Tadić case that would support the former position. However, this remains a mostly isolated example in an extensive article that is premised on the argument that ICL practitioners treat doctrinal diversity as a substitute for legal pluralism.  In other words, while the authors draw on numerous instances where ICL practitioners rely on domestic legislation and case law to formulate ICL principles, it is far from clear that the practitioners themselves look upon this exercise as furthering value pluralism or justify it in those terms.

Relatedly, at the outset of the article, Stewart and Kiyani recognize “the inevitability of the reliance on foreign domestic criminal law by international lawyers and institutions.” However, since their underlying assumption is that foreign national doctrine is being misappropriated by international criminal law institutions to tout ostensibly pluralistic values, they fail to distinguish this superficial transplantation of domestic criminal law into the international realm, from potentially legitimate and useful reliance on national doctrines. Yet again, comparative and international criminal law scholarship could have provided a rich source material to explore this possibility. ICL scholars have, for example, criticized the practice of international criminal tribunals whereby courts conduct cursory surveys of domestic criminal laws to propose “general principles of law”. However, this does not have to entail a complete abandonment of references to domestic legal rules found in statutes and case law. These formal sources of law may still be useful for an international court, not as embodiments of cultural pluralism, but as models of legal principles that have been tested in the laboratory of domestic legal systems, and that can serve as an inspiration for rules and principles that are tailored to the requirements of the international criminal law regime.

Finally, while Stewart and Kiyani are clearly in their element in highlighting and exploring case studies from different domestic jurisdictions and international courts, at times, the link between their abstract thesis and the case study is quite tenuous. For instance, the authors claim that the failure of the domestic German war crimes trials after World War I can be explained in part by their adoption of a German criminal procedure that was in accord with native German values, but alien to other legal systems and to foreign audiences. The experience of the Leipzig war crimes trials is adduced to demonstrate that “[e]ven when criminal doctrine is a safe proxy for social and cultural values within the community it governs… this fact alone is not a sufficient condition for privileging it in a contest between normative orders.” This is a perfectly reasonable proposition except that on the authors’ own account, it is difficult to say that the criminal procedural innovations that were controversial at Leipzig should in fact be regarded as a proxy for German social and cultural values. The two specific procedural rules that Stewart and Kiyani cite were both introduced as deviations from normal German criminal procedure in 1920 and 1921. Given the care that the authors otherwise take to refrain from equating the acceptance of every single doctrinal rule with a country’s culture, it is a stretch to then argue that a recent procedural amendment introduced in the wake of a devastating war loss, and in circumstances of exceptional political tension, was reflective of German community values more broadly. Equally, with the intense resentment caused by German actions in World War I, not least in France and Belgium, it is quite likely that that no matter what procedural model had been adopted at Leipzig, acquittals in large numbers, especially of high profile defendants, would have been unlikely to secure their approbation.

None of these critical questions, however, should be taken to undermine the importance and urgency of Stewart and Kiyani’s central claim: an ICL that continues to be biased, discriminatory, and myopic will have little claim to global legitimacy and the burden of rectifying the many parochialisms of ICL is a task that falls upon all of us who care about and practice this enterprise. The article is a welcome and impressive contribution to this vital conversation.

New Symposium: The Ahistoricism of Legal Pluralism in International Criminal Justice


I am very pleased to host a new mini-symposium on a long article I co-authored with Asad Kiyani, entitled the Ahistoricism of Legal Pluralism in International Criminal Justice. Because of length constraints, the American Journal of Comparative Law could only publish a shorter version of the piece, so with their blessing, Asad and I have decided to publish the longer version online and invite a series of excellent scholars to debate this longer version as part of this blog’s commitment to curating respectful critique of new scholarship. The longer version we discuss here contains a fourth part focused on criminal law procedure in Argentina and post WWI trials in Europe. In this additional part, we use these two illustrations, first as a counterexample that acts as a null hypothesis for the remainder of our piece, then as a qualification of this initial counterexample. We are thrilled to have an eclectic group of scholars who work on these issues from different disciplinary backgrounds criticize the piece, and hope that the dialogue spawns further debate within legal pluralism as well as international criminal justice. The article’s abstract follows: 

International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal laws that inform ICL leads to (a) the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural and political values; and (b) in the limited instances where criminal law doctrine does reflect underlying societal values, an overly general assumption that respecting the various embodiments of this law is best for ICLThese oversights result in important normative distortions, with major implications for the field’s self-image, function and legitimacy. In particular, scholars and courts overlook that much criminal law doctrine globally is the result of either a colonial imposition or an “unsuccessful” legal transplant, as well as historical examples where respecting pre-existing doctrinal arrangements undermined the value of postwar trials on any semi-defensible measure. In this Article, we revisit a cross-section of this missing history to contribute to both Legal Pluralism and ICL. For the former, we demonstrate that there is nothing inherently good about Legal Pluralism, and that in some instances, a shift from its descriptive origins into a more prescriptive form risks condoning illegitimate or dysfunctional law. For ICL, our historiography shows how partiality is embedded in the very substance of ICL doctrine, beyond just the politics of its enforcement. At one level, this realization opens up the possibility of renegotiating a universal ICL that, at least in certain circumstances, is actually more plural in terms of values and interests than doctrinal pluralism (although the dangers of power masquerading as universalism are also profound). At another, it suggests that institutions capable of trying international crimes need to do far more to step away from the ugly legal histories they have inherited. 

Before we begin the mini-symposium, a word from behind the scenes. First, this piece resulted from an excellent collaboration between Asad and I. As the article attests, Asad and I were very equally involved in all facets of its production, including design, research, (re)writing, editing and workshopping. The collaboration was a great pleasure, from which I learned a lot. In terms of process, this project consumed a tremendous amount of energy. On more than one occasion, we concluded that we had to rewrite large sections. The history of the criminal law in entire regions of the world was excised with the stroke of a pen, entire subject-areas were calved off after more than one person said we had two papers here not one, and several times, we concluded that despite already having spent years on it, we had to begin new research on different periods and legal systems. I think I speak for Asad as well when I say that we learned a great deal through this project and are very pleased to see it completed and debated by so many outstanding scholars whose work we admire. 

Upcoming Inquiries for the Field of Transitional Justice: Response to Commentaries


Colleen Murphy is a Professor in the College of Law and the Departments of Philosophy and Political Science at the University of Illinois at Urbana-Champaign, Director of the Women and Gender in Global Perspectives Program in International Programs and Studies, and Affiliate Faculty of the Beckman Institute.


Transitional justice is the process of reckoning with past wrongs in the midst of an attempted transition away from extended periods of conflict or repression. In my book, The Conceptual Foundations of Transitional Justice, I examine the question of how we should understand the “justice” of “transitional justice.” By what standard or set of principles should we judge “justice to have been done” in the way a society deals with past wrongs in the context of a transition? How should we think about the justice of processes like truth commissions, amnesty or reparations? I argue that retributive justice, corrective justice and distributive justice are not the standards to use to answer these questions.

“Transitional justice” has its own standards of justice, standards which become salient in the context of four specific circumstances. These circumstances are (1) pervasive structural inequality in the terms by which citizens and officials interact; (2) normalized collective and political wrongdoing, in which human rights violations become a basic fact of life; (3) serious existential uncertainty, where the future trajectory of a political community is profoundly unclear; and (4) fundamental uncertainty about authority given that the state is characteristically implicated in wrongdoing. In these circumstances, I argue, the central question of justice is: what constitutes the just pursuit of societal transformation? I define societal transformation as relational transformation, transformation of relationships among citizens and between citizens and officials. Justice is done when processes contribute to this relational transformation and so in a way that is sensitive to the claims of victims and moral demands on perpetrators of wrongdoing.

I am very grateful to David Tolbert and Roger Duthie, Laurel Fletcher, Steven Ratner, Nir Eisikovits, and James Stewart for their careful reading of my book and for pressing me on some of the most difficult questions for me to answer adequately. Below I respond to their queries by discussing (1) the relationship among development, peacebuilding and transitional justice; (2) the relationship between the requirements of societal transformation and the requirements for its just pursuit; (3) where I identify the limits of transitional justice.

Development, peacebuilding and transitional justice

Consider first development and transitional justice.[1] Development I take to be concerned with the expansion of individual and communal capabilities. Capabilities refer to genuine opportunities to do and become things of value, such as being adequately nourished, being employed and being educated. Genuine opportunities are a function of (1) what an individual has (e.g., skills and resources) and (2) what she can do with what she has (e.g., given the state of the built infrastructure within a community or gender norms.) Poverty from this perspective is defined in terms of deprivations, such as “inadequate resources to buy the basic necessities of life; frequent bouts of illness and an early death; living conditions that imperil physical and mental health.”[2]

The imperatives of development and transitional justice overlap to a certain extent. For example, my account of relational transformation includes fostering threshold levels of capabilities, including the capability to avoid poverty. Thus, processes that aim at or contribute to poverty reduction can promote both development and transitional justice. However, development and transitional justice may also diverge. For example, development policies may prioritize natural hazard mitigation, which is recognized to be essential to the sustainability of development but which is not essential to relational transformation. Furthermore, transitional justice is constrained in ways that development is not. Transitional justice pursues relational transformation by responding to past wrongs, and so prioritizes victims of wrongdoing, many but not all of whom are poor. Thus, development policies aimed at the most effective alleviation of poverty may not focus on the same group.

What is the role of peace in my account of transitional justice, Ratner, Tolbert and Duthie ask? Short-term peace is often a condition for the possibility of longer-term societal transformation.[3] For instance, reductions in violence, especially through cease-fires and other truces, can contribute to establishing or strengthening the conditions on which the rule of law depends. The rule of law requires restraint on the part of both officials and citizens. And part of what motivates citizens to exercise this restraint is faith in law and trust in the officials who make and enforce law. By respecting the restraint required by a period of a ceasefire or truce, citizens and officials previously in conflict can have evidence that wider restraint required by the rule of law may be possible, and so in a very minimal way begin to build trust.

Eisikovits wonders whether I have overlooked an important source of fragility in transitional contexts, which exacerbates serious existential uncertainty and fundamental uncertainty about authority: the absence of shared political history and identity. Such history and identity, he suggests, provides a shared background against which to evaluate contemporary events, resources for agreeing where political events are indeed different than challenges faced and overcome in the past. In response, I agree that the absence of shared history and identity is surely salient in many transitional contexts. Indeed, diverging and in some respects incompatible historical narratives is a crucial feature of contexts where deep divisions exist. Whether in Serbia, Bosnia, Northern Ireland or Colombia, diverging narratives are present of what wrongs were done, by whom and against whom, and what events and people should be remembered and in what way. It was in part the question of how to think about the absence of shared narratives and identity, and the implications for liberalism and democracy that my interest in political reconciliation and then in transitional justice first arose. I wondered whether what the philosopher John Stuart Mill called “common sympathies” were in fact necessary for the kind of governance he envisioned.

However, I think a key source of political fragility is a shared sense of the plausible practical possibilities through which a transitional society must navigate and of what those possibilities actually entail. If a society is emerging from a period of civil war, a return to civil war is not merely a rhetorical question politicians or citizens may ask, but a genuine practical possibility. It is one option of many along a spectrum of what may happen. By contrast, though we had a civil war 150 years ago, another civil war is not a practical possibility for Americans today despite deep political divisions and widely diverging narratives of our present moment; there is no shared sense of this being a practical possibility of where our divisions may lead. Nor do many Americans have a robust sense of what civil war would actually entail. Thus, I am more inclined to think that what exacerbates uncertainty is the fact that certain possibilities for where events may lead are not merely hypothetical and are widely recognized not to be merely hypothetical given recent history, rather than the absence of shared narratives.

Societal transformation and its just pursuit

A second cluster of questions that the commentators raise concerns the two dimensions of transitional justice I articulate: societal transformation and its just pursuit. Ratner wonders whether societal transformation is the unique or best way of addressing the problem that the four circumstances of justice generate. In my view, societal transformation is not the only possible candidate of the problem the four circumstances of justice generate. One function of my argument in Chapter 2 is to demonstrate the limitations of some alternative ways of defining the problem of transitional justice, drawn from standard accounts of retributive, corrective and distributive justice. Relative to these alternative possibilities, I argue, transformation is the best way of conceptualizing the problem of transitional justice. As I acknowledge in the conclusion, however, there are different ways of filling out transformation than the substantive view that I articulate in Chapter 3. One may think of transformation not in terms of relationships, for example, or may think of what relational transformation requires in ways that do not invoke (only) the rule of law, trust and relational capabilities. In adjudicating among conceptions of transformation, one account would be better in my view if it more effectively responded to pervasive structural inequality and normalized collective and political wrongdoing.

How should we understand the status of the “just pursuit” of transformation, Ratner, Tolbert and Duthie all press? Is there intrinsic value to the requirements of fitting and appropriate conduct of treatment of victims and perpetrators? Could be processes of justice that respond to the claims of victims and demands on perpetrators but not aim at broader transformation? The answer to both questions in my view is yes. In my view, a just reparations scheme could narrowly aim at acknowledging wrongdoing experienced and providing compensation for losses suffered by victims, respecting the other conditions for pursuing these aims I discuss in Chapter 4. It would be just insofar as it satisfied these intrinsically important criteria for fitting and appropriate treatment of victims. However, this process would not be a process of transitional justice in my view. In transitional justice, the requirements of fitting and appropriate treatment of perpetrators and victims play an additional, instrumental role in contributing to societal transformation; the aim of transformation is necessary for a process to be one of transitional justice.

Are the requirements of societal transformation and of fitting treatment of perpetrators and victims interdependent or independent? I use just war theory as a model for understanding the relationship between the two parts of transitional justice. However, Ratner notes that the two dimensions of just war are not completely independent in practice. The justice of the cause of anti-colonial fighters came to shape the justice of their actions. In terms of transitional justice, given the tight relationship in practice between pervasive structural inequality and normalized collective and political wrongdoing, there will be a tight relationship between the prospects for societal transformation and satisfaction of the demands for its just pursuit. For example, one aspect of societal transformation is establishing threshold levels of opportunities to be recognized as an equal member of one’s community. This is also an aim of responses to individual victims, to acknowledge them as equal members of their community. Thus, by expressing recognition of the victim as an equal member of a community a process can impact the transformative aim of establishing threshold opportunities to be recognized as members of a community of a previously marginalized group. In future work, I hope to think through this question of interdependence more fully.

Can these two parts of transitional justice ever be in tension? Yes. I agree with Eisikovits’ point that there can be tensions that arise in the pursuit of societal transformation and respect for the claims of victims and demands on perpetrators. There may need to be compromises made in the pursuit of transitional justice, and one place is in balancing the demands of transformation and the demands of fitting and appropriate treatment of perpetrators and victims. The balance or compromise may be between the degree of accountability achieved and the degree of the contribution of a process to broader relational transformation. Amnesties, which Eisikovits references, can illustrate this balance, though I do not believe amnesties are necessarily incompatible with just treatment of perpetrators. Depending on the conditions which must be satisfied to be eligible for amnesty, there can be a measure of accountability for perpetrators achieved.

A different tension may arise in trying to pursue transformation in a manner consistent with the kind of relationships you aim to foster. In particular, there is a question of whether democratic relationships can permissibly be pursued non-democratically. Answering this question is difficult in part because it is not obvious what demands democracy place in choices concerning transitional justice; this is an issue I want to also take up more directly in future work. What kind of say over what kind(s) of questions should the people have for transitional justice to be democratically decided? This question underlies debates in Colombia over how to think about democratic legitimacy of the decision not to hold a second plebiscite on the revised Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, after the original version of the Final Accord failed in the first plebiscite. 

The limits of transitional justice

Stewart, Tolbert and Duthie press me on the limits of my theory. Tolbert and Duthie press me on the limits of possible processes of transitional justice, given my call to expand the processes considered beyond criminal trials, truth commissions, reparations, amnesty and memorials. Specifically, how I would evaluate educational reform? In my view, whether education will be a process of transitional justice depends. Educational changes could count as processes of transitional justice. Specifically, how history is taught may be modified to more explicitly acknowledge past wrongdoing, both as a way of recognizing the dignity and citizenship of those previously denied such recognition and as a way of facilitating societal transformation by countering denial about the prevalence of, nature of, and/or conditions that facilitated wrongdoing. Other educational reforms not specifically dealing with the wrongs of the past may contribute to societal transformation but would not count as processes of transitional justice in my view.

Stewart’s post highlights the international character of many contemporary conflicts and the causal role of international actors in maintaining repressive regimes and in atrocity. Such actors include multinational corporations as well as foreign governments.  He also correctly notes the implicit in my account is a focus on a single domestic society. How can my framework account for the global dimensions of transitional justice? Here are some preliminary thoughts, which I look forward to expanding on in greater detail in my next project. Consider first the requirements for the fitting and appropriate treatment of perpetrators and of victims. Those moral demands do not have geographical limits. There is no principled reason to cordon off the role of international actors implicated causally in atrocity. The question is: how, by whom, and for what purpose(s) will these demands be pursued? Accountability for international actors may be pursued for its own sake, and not just by a transitional society but also by, for example, the home country where a corporation is based. Accountability may be pursued for its own sake and also for the sake of societal transformation; this would be a case of its pursuit as part of transitional justice. When pursued as part of transitional justice, the question of the form accountability will take to facilitate societal transformation is one for the transitional society in question primarily to decide, subject to parameters set by international law. Finally, in terms of transformation itself, I also agree with Stewart that our interdependent global order and influential actors like multinational corporations mean that that transformative possibilities will not in many cases be set or determined by domestic actors alone. I also agree that global justice, by which philosophers mean justice in the background global institutional order that shapes the distribution of goods and resources, may be important for its own sake and for enabling, or at a minimum not undermining, local transformation of relationships between citizens and officials.

Fletcher, Tolbert and Duthie all approach my book from the perspective of practitioners and ask: will my book make a difference to transitional justice theory and practice? They note ways in which my account is responsive to concerns among practitioners and scholars, including the fact that structural marginalization and discrimination are key factors in mass violence. Fletcher also suggests that my account provides guidance on how to move beyond currently intractable disagreements concerning, for example, how to balance legal duties to truth, reparations, accountability and non-recurrence, where these duties can be thought of as reflecting duties of different kinds of justice. Instead, my account she rightly notes suggests we instead ask: what processes will transform relationships both among citizens and between the state and citizens? My hope is that my book can contribute to shaping and rethinking the questions asked by both scholars and practitioners, though only time will tell if this indeed becomes the case.

 

[1] The brief points made here I develop in greater detail in Deliberative Democracy and Agency: Linking Transitional Justice and Development, in Lori Keleher and Stacy J. Kosko (eds.), Agency and Democracy in Development Ethics (Cambridge University Press, forthcoming 2018).

[2] I draw on the capability approach to development pioneered by Amartya Sen and Martha Nussbaum. The quote is from James Foster, Suman Seth, Michael Lokshin, and Zurab Sajaia, A Unified Approach to Measuring Poverty and Inequality (Washington DC: World Bank, 2013)

[3] The question of the relationship between peace and transitional justice I develop in some detail in Colleen Murphy, Political Reconciliation, the Rule of Law, and Truces, 13 Journal of Global Ethics 28 (2017).

Appraising Transitional Justice Through the Just War Theory Analogue


Steven R. Ratner is Bruno Simma Collegiate Professor of Law at the University of Michigan. His teaching and research focus on public international law and on a range of challenges facing governments and international institutions since the Cold War, including territorial disputes, counter-terrorism strategies, ethnic conflict, state and corporate duties regarding foreign investment, and accountability for human rights violations.


Colleen Murphy’s The Conceptual Foundations of Transitional Justice offers a significant addition to our understanding of transitional justice (TJ) in at least three ways.

First, Murphy deserves accolades for traversing numerous disciplinary divides in her approach to TJ. For scholars seeking to build more bridges between international law and philosophy, this books offers an excellent way as to how it can be done. Although legal scholarship on TJ has recognized many of the goals that Murphy defends, lawyers will benefit from the careful way in which she discusses trade-offs and priorities. Philosophers, on the other hand, should learn the importance of direct engagement with the key legal sources, including the workings of several TJ mechanisms.

Second, Murphy’s explanation of the justice of TJ moves us beyond both political and legal ways of thinking about TJ. Students of politics tend to think about TJ in terms of its success or failure for the particular country, with different measurements of those terms. Lawyers take the “justice” in TJ to mean that the starting point must be criminal justice, although they realize that TJ must encompass other goals like truth, acknowledgment, reparations, and measures for non-recurrence. They also tend to zero in on the scope of a state’s duties under international law (e.g., are amnesties allowed? Is there a right to the truth?)

Murphy helps us see that TJ is a matter of justice as philosophers understand that concept. She also emphasizes the necessity of defining clearly the subject matter of justice – that the justice of one thing (e.g., the basic structure of a liberal state) is quite different from the justice of something else (e.g., a TJ course of action taken by a state). Chapter 1 thus offers up the criteria of a TJ situation, so we know why the justice of that thing is worthy of inquiry. The four criteria that she offers seem to encompass the real-world cases that we ordinarily think of as concerning TJ and to raise morally important questions.

Third, and the focus of my comment, Murphy adopts an original methodological hook for analyzing the justice of a state’s TJ choices, namely to examine separately the just goals of TJ and the just means of carrying it out. Her analogy is to the two branches of just war theory (and the of law of war as well), namely the jus ad bellum (JAB) and the jus in bello (JIB). She thus develops what she calls the jus ad bellum analogue (JABA) and the jus in bello analogue (JIBA). This bifurcation of justice has the potential to provide a new level of clarity in our thinking, as we accept the need to look at two aspects of the process and not merely one.

At the same time, the JABA/JIBA approach raises some new conceptual questions. First, within the JABA itself, although the goal of social transformation (ST) – which she equates with relational transformation (RT) – is morally compelling, is that goal the only — or the principally — just goal for TJ? To return to the legal paradigm, in the case of the JAB, we can say that the only legally defensible reasons for a state to use force against another state are self-defense, authorization from the Security Council, and, on some accounts, humanitarian intervention. It is a necessary and sufficient condition of JAB legality that the state action be based on one of these three grounds. But does ST/RT meet the necessary/sufficient test? Though Murphy shows that ST through RT can respond to the four unique moral problems of a TJ situation, it is not clear if ST is the best or only means to address those problems. And even if it is the best or only method, why does that make it just in the same sense that JAB tells us the necessary and sufficient conditions for a just (or legal) war?

Second, and relatedly, because many TJ situations arise after prolonged violence in a country (not just “normalized and collective wrongdoing”), one wonders what role in the JABA is played by solidification of domestic peace. The serious existential uncertainty that helps define a situation needing TJ can extend to whether the peace will even hold. Murphy points out (p.111) that stability has its own value, as people still need to live their lives, with school, businesses, marriages, and ordinary living continuing. Yet those seem to take a back seat to ST.

Certainly, elites in a transitional situation can use the canard of solidification of the peace as a way to avoid any serious ST. I’ve witnessed this myself when I served on two UN accountability panels, for Cambodia and Sri Lanka, where the triumphalist elites running those countries each insisted that trials, or even investigations, of international crimes would re-ignite civil wars (by the Khmer Rouge and the LTTE, respectively) that were clearly over. But certainly it seems morally compelling goal of TJ to ensure that peace is maintained in those situations where it might be precarious. ST via RT can provide a way to long-term domestic peace, but it is not at all clear that it can provide short-term peace. Transformation may have to be put on hold to placate the losers or those with the ability to upset the transition.

Third, the JABA/JIBA tool can give rise to some new questions regarding a just TJ. International law doctrine generally holds that JAB and JIB operate independently. Under the so-called “separation thesis,” the legality of going to war is not affected by how it is carried out, and vice-versa. In particular, a state that obeys the rules of war (JIB) cannot be relieved of its liability for an aggressive war (JAB); and states that use force for legally acceptable reasons (JAB) still must obey the rules of war (JIB), even against aggressors. This principle explains the practice of the International Committee of the Red Cross of not commenting on the underlying legality of a war, as it insists that all parties must comply with the JIB.

Yet JAB and JIB are not actually completely independent. After states banned most uses of force in Article 2(4) of the Charter, states adjusted the JIB in the 1949 Geneva Conventions to make clear that territory annexed by the occupier was still legally occupied. And as most states began to accept that anti-colonial wars were lawful, they changed the jus in bello in the 1977 Additional Protocol I to state that anti-colonial fighters who did not resemble traditional soldiers would also receive most of the privileges of combatantcy and not be treated as illegal fighters. (See Addition Protocol I, arts. 4, 44). So it turns out that the legality of the recourse to force can affect the legality of the conduct of the war.

In Murphy’s use of the JIBA/JABA model, the thrust of her Chapter 4 seems based on the separation thesis – that we judge the justice of the manner of a transition independently of its goals. She thus usefully says TJ responses must be “fitting or apt” (p. 163), which turns on four features (pp. 163-72). First, they must address six moral imperatives, i.e., they must respond to the perpetrators by (1) repudiating their wrongs and (2) holding them accountable; they must respond to the victims by (3) acknowledging the wrongs against them, (4) recognizing their status as victims, and (5) providing reparation; and they must respond to both by (6) promoting nonrecurrence. These correspond to goals widely accepted by practitioners of TJ in international organizations and NGOs.  Second, they must reflect the relations among the relevant actors. Third, they must reflect the gravity of the offense. And fourth, they must reflect cultural expectations. She goes on to show, through good examples, how, different institutional responses – e.g., the ICTY and the Ugandan Amnesty Commission – did not “fit” based on those criteria. And she astutely observes the importance for states of “active coordination” by domestic and international actors to make sure that each TJ mechanism is considered in connection with the others, rather than in isolation.

Yet I wonder whether, like the law, strict separation does not offer a complete description of the two aspects of justice. In particular, is there a connection between the JIBA requirements and the JABA requirement? It would be nice to explore how each of the imperatives regarding perpetrators and victims advances ST/RT or how the imperatives might change if the goals were different from ST/RT. I agree with her inclination, which she justifies in the conclusion, not to ask how “any specific kind of response” (p. 198) actually contributes to ST, but it would help to know how the six imperatives (which are one level up in generality) do so.

Second, in thinking about the six moral imperatives for TJ responses, one might ask why are they not also – or instead – part of the JABA, i.e., the just goals of a transition? International organizations like the UN and other scholars of TJ generally describe those six imperatives as part of the end, in part because ST/RT sounds too academic as well as idealistic, but also because they see those imperatives as part of the goals of TJ. So are these six imperatives intrinsically valuable, regardless of their actual effect on ST/RT? Intrinsically valuable but also instrumentally valuable?

Murphy ends with an important plea for a holistic view of justice, one sensitive to the JABA and all the many elements of the JIBA. I certainly agree, although maybe the international organizations have it right by having us consider justice only from the latter perspective. If a state finds the proper mechanisms that meet the six moral goals in a way that that also respects the other three JIBA criteria, does it matter whether its goal is ST/RT or something else? One could consider that a great success and also be confident that societal transformation would follow on its own.   At the same time, by justifying ST/RT as the ultimate long-term just solution to the unique problems of TJ, Murphy has helped us see where the state eventually needs to go.